Citation Nr: 0018507
Decision Date: 07/14/00 Archive Date: 07/14/00
DOCKET NO. 98-13 170 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder.
2. Entitlement to service connection for generalized anxiety
disorder.
3. Entitlement to a compensable evaluation for residuals of
multiple shell wounds: scars on the left thigh, left arm, and
inguinal region.
4. Entitlement to a compensable evaluation for residuals of
furunculosis infection: scar left lower leg.
5. Entitlement to a compensable evaluation for a donor site
scar on the left thigh.
6. Entitlement to a combined 10 percent evaluation based
upon multiple noncompensable service connected disabilities
under the provisions of 38 C.F.R. § 3.324 (1999).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
E. W. Koennecke, Associate Counsel
INTRODUCTION
The appellant served on active duty from April 1967 to March
1970.
This case comes before the Board of Veteran's Appeals (the
Board) on appeal from an April 1998 rating decision of the
Nashville, Tennessee, Department of Veterans Affairs (VA)
Regional Office (RO).
Preliminary review of the record reveals that the RO
expressly considered referral of the case to the Under
Secretary for Benefits or the Director, Compensation and
Pension Service for the assignment of an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) (1999). This
regulation provides that to accord justice in an exceptional
case where the schedular standards are found to be
inadequate, the field station is authorized to refer the
case to the Under Secretary for Benefits or the Director,
Compensation and Pension Service for assignment of an
extraschedular evaluation commensurate with the average
earning capacity impairment. The governing criteria for
such an award is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked inference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. The U. S.
Court of Appeals for Veterans Claims (known as the United
States Court of Veteran's Appeals prior to March 1, 1999)
(hereinafter Court) has held that the Board is precluded by
regulation from assigning an extraschedular rating under 38
C.F.R. § 3.321(b)(1) in the first instance, however, the
Board is not precluded from raising this question, and in
fact is obligated to liberally read all documents and oral
testimony of record and identify all potential theories of
entitlement to a benefit under the law and regulations.
Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has
further held that the Board must address referral under 38
C.F.R. § 3.321(b)(1) only where circumstances are presented
which the Director of VA's Compensation and Pension Service
might consider exceptional or unusual. Shipwash v. Brown, 8
Vet. App. 218, 227 (1995). Having reviewed the record with
these mandates in mind, the Board finds no basis for further
action on this question. VAOPGCPREC. 6-96 (1996).
FINDINGS OF FACT
1. Competent evidence attributing generalized anxiety
disorder to service is not of record.
2. Competent evidence of a current diagnosis of post-
traumatic stress disorder has not been submitted.
3. Residuals of multiple shell wounds: scars on the left
thigh, left arm, and inguinal region are well healed and
asymptomatic.
4. Residuals of furunculosis infection: scar left lower leg
is well resolved, depressed but without functional limitation
and is asymptomatic.
5. A donor site scar on the left thigh is well healed and
asymptomatic.
6. The appellant's noncompensable service-connected
disabilities have not been shown to interfere with normal
employability.
CONCLUSIONS OF LAW
1. The claim for service connection for generalized anxiety
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The claim for service connection for post-traumatic
stress disorder is not well grounded. 38 U.S.C.A. § 5107(a)
(West 1991).
3. The criteria for a compensable evaluation for residuals
of multiple shell wounds: scars on the left thigh, left arm,
and inguinal region have not been met. 38 U.S.C.A. §§ 1155,
5107(b) (West 1991); 38 C.F.R. Part 4, § 4.118, Diagnostic
Code 7805 (1999).
4. The criteria for a compensable evaluation for residuals
of furunculosis infection: scar left lower leg have not been
met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R.
Part 4, § 4.118, Diagnostic Code 7805 (1999).
5. The criteria for a compensable evaluation for a donor
site scar on the left thigh have not been met. 38 U.S.C.A.
§§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.118,
Diagnostic Code 7805 (1999).
6. The criteria for a compensable rating under the
provisions of 38 C.F.R. § 3.324 have not been met. 38
U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.324 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection Claims
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a preexisting injury
or disease. 38 U.S.C.A. § 1110 (West 1991). Regulations
also provide that service connection may be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(1999).
Service connection for post-traumatic stress disorder
requires medical evidence diagnosing the condition in
accordance with 38 C.F.R. § 4.125(a) (conforming with DSM-IV
or supported by the findings on the examination report); a
link, established by medical evidence, between current
symptoms and an inservice stressor; and credible supporting
evidence that the claimed inservice stressor occurred. If
the evidence establishes that the veteran engaged in combat
with the enemy and the claimed stressor is related to this
combat, in the absence of clear and convincing evidence to
the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed inservice
stressor. 38 C.F.R. § 3.304(f) (1999).
In making a claim for service connection, the appellant has
the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim
is a plausible claim, one which is meritorious on its own or
capable of substantiation. Murphy v. Derwinski, 1 Vet. App.
78, 81 (1990).
A well-grounded claim for service connection generally
requires medical evidence of a current disability; evidence
of incurrence or aggravation of a disease or injury in
service as provided by either lay or medical evidence, as the
situation dictates; and, a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence. Cohen v. Brown, 10
Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498
(1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table);
see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1998);
Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus
between service and the current disability can be satisfied
by evidence of continuity of symptomatology and medical or,
in certain circumstances, lay evidence of a nexus between the
present disability and the symptomatology. See Savage v.
Gober, 10 Vet. App. 488, 495 (1997). Establishing direct
service connection for a disability that was not clearly
present in service requires the existence of a current
disability and a relationship or connection between that
disability and a disease contracted or an injury sustained
during service. Cuevas v. Principi, 3 Vet. App. 542 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Moreover, establishing a well-grounded claim for service
connection for a particular disability requires more than an
allegation that the particular disability had its onset in
service. It requires evidence relevant to the requirements
for service connection cited above and of sufficient weight
to make the claim plausible and capable of substantiation.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy,
1 Vet. App. at 81. The kind of evidence needed to make a
claim well grounded depends upon the types of issues
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993). For some factual issues, competent lay
evidence may be sufficient. However, where the claim
involves issues of medical fact, such as medical causation or
medical diagnoses, competent medical evidence is required.
Grottveit, 5 Vet. App. at 93.
The appellant served in Vietnam and earned the Combat Action
Ribbon and the Purple Heart with one star in addition to
other awards and citations. The Board finds that he is a
combat veteran. With regard to combat veterans, 38 U.S.C.A.
§ 1154(b) lightens the burden of a veteran who seeks
benefits for an allegedly service-connected disease or
injury and who allege that the disease or injury was
incurred in, or aggravated by, combat service. Jensen v.
Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994). Section 1154(b)
sets forth a three-step, sequential analysis that must be
undertaken when a combat veteran seeks benefits under the
method of proof provided by the statute. As the first step,
it must be determined whether the veteran has proffered
"satisfactory lay or other evidence of service incurrence
or aggravation of such injury or disease." 38 U.S.C.A.
§ 1154(b). As the second step, it must be determined
whether the proffered evidence is "consistent with the
circumstances, conditions, or hardships of such service."
Id. The statute provides that if these two inquiries are
met, the Secretary "shall accept" the veteran's evidence
as "sufficient proof of service-connection," even if no
official record of such incurrence exists. Id. Thus, if a
veteran satisfies both of these inquiries mandated by the
statute, a factual presumption arises that the alleged
injury or disease is service-connected. The presumption is,
however, rebuttable. The VA may rebut the presumption by
presenting "clear and convincing evidence to the
contrary." Id. Thus, as the third step in the analysis,
it must be determined whether the government has met its
burden of rebutting the presumption of service-connection by
"clear and convincing evidence to the contrary." Id.
Collette v. Brown, 82 F.3d 389, 392-93 (1996).
The appellant has contended that he has suffered from
extreme nervousness over the years. It has caused problems
in his marriage and in dealing with people. He argued that
post-traumatic stress disorder should be service connected
and that Vietnam left him with a life of alcoholism and
depression. The appellant has contended that he has mental
anguish associated with the service connected scar on his
left leg.
The appellant's psychiatric evaluation was normal at the time
of his enlistment examination in March 1967. The appellant
denied sleeping trouble, nightmares, depression, excessive
worry or nervous trouble of any sort. A notation in March
1968 indicated that his service medical records had been
destroyed by enemy fire and replacement was made as of that
date. A replacement examination was conducted in March 1968
and his psychiatric evaluation was normal. His psychiatric
evaluation was normal at the time of his separation
examination in March 1970.
A VA examination was conducted in October 1971. The
appellant voiced no complaints and the examiner indicated the
appellant had no mental problems.
An evaluation of his neuropsychiatric condition in September
1984 was negative.
A VA examination was conducted in December 1997. The
appellant complained that he had no patience. He blew up
over the slightest thing. He had this problem for three
years and felt it was generated by his wife's illness. He
reported that he was edgy, restless and easily upset. He was
irritable and easily drawn into arguments. He had
concentration problems and difficulty falling and staying
asleep. He worried about every little thing. He denied
panic, irritable bowels, headaches and fatigue. He denied
most of the symptoms associated with an obsessive-compulsive
personality.
The appellant served for three years active duty and saw
combat in Vietnam. He was an infantryman and was wounded by
hand grenades. He saw other Marines die on the battlefield.
He was bothered by one memory, where he passed by a Marine
who was mortally injured but still alive. He did not know
how to behave and did not speak to the wounded man or try to
comfort him. He feels now like he should have said
something. He was also annoyed by a memory of when he was
hit by the grenade and became confused and other soldiers had
to pull him down. He thought about these events about once a
week. The thoughts tended to come on when he was either
depressed or unhappy about his lot in life. He had dreams
about his brother who died in Vietnam. He denied flashbacks.
He reported that he enjoyed life and was not detached from
people. He had affection for his family and enjoyed shopping
and going to church.
His condition had gotten worse over the prior 3-4 years. On
mental status examination he was in no apparent distress. He
was highly conversational and his affect was full. He was
normoactive, clean and neat. He was fully oriented to
person, place, time and situation. His remote memory showed
fair-to-good detail. His current memory showed excellent
detail, but required prompting. Generalized anxiety disorder
was diagnosed. The examiner concluded that generalized
anxiety disorder was not related to military service. There
was no evidence of post-traumatic stress disorder because the
appellant did not describe persistent re-experiencing of
traumatic events. He described occasional recollections of
the events. He did not describe persistent avoidance of
stimuli associated with the trauma. Particularly, there was
no amnesia, apathy, detachment, estrangement, restricted
range of affect, or sense of foreshortened future. He did
not meet criterion C of post-traumatic stress disorder. The
appellant made it clear repeatedly that his distress was
related to his wife's illness, and the examiner indicated
there was no cause to doubt this.
I. Post-traumatic Stress Disorder.
The claim for service connection for post-traumatic stress
disorder is not well grounded. Competent evidence of post-
traumatic stress disorder has not been presented. A service-
connection claim generally must be accompanied by evidence
that establishes that the claimant currently has the claimed
disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992). Absent proof of a present disability there can be no
valid claim. A medical examination or other medical evidence
that shows that the veteran currently suffers from a claimed
disability is a fundamental prerequisite for establishing
service connection. Because there is no evidence of a
current diagnosis of post-traumatic stress disorder, the
Board must deny the claim as not well grounded. The
appellant has claimed that service connection for post-
traumatic stress disorder is warranted; however, the
appellant's own, unsupported opinion does not give rise to a
well-grounded claim. Lay testimony is competent only when it
regards features or symptoms of injury or illness, but may
not be relied upon for establishing a medical diagnosis, be
that a current diagnosis or one linking a current disability
to service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).
The appellant lacks the medical training and expertise to
diagnose post-traumatic stress disorder or attribute it to
service.
The Board recognizes that the appellant is a decorated combat
veteran and a recipient of a Purple Heart with one star. The
Board accepts that there were stressors associated with his
combat service. In the absence of a post-traumatic stress
disorder diagnosis, the provisions of 38 U.S.C.A. § 1154 do
not assist the appellant. The provisions of 38 U.S.C.A.
§ 1154 relate only to incurrence, that is what happened in
service. Section 1154 does not obviate the need to submit
evidence of the two additional well-grounded claim elements:
current disability and a nexus to service. Arms v. West, 12
Vet. App. 188, 194 (1999). His combat status alone is
insufficient to support a grant of service connection.
II. Generalized Anxiety Disorder.
The claim for service connection for generalized anxiety
disorder is not well grounded. There has been a post-service
diagnosis of generalized anxiety disorder; however, there is
no competent evidence of a nexus between the diagnosis and
service. See Caluza, supra. In fact, there is evidence to
the contrary. At the conclusion of the VA examination in
December 1997, the examiner indicated that generalized
anxiety disorder was not related to military service. It
must also be noted that the appellant's separation
examination showed a normal psychiatric evaluation.
The only nexus evidence is the appellant's contention that he
suffers from extreme nervous problems over the years. It has
not been shown that he possesses the requisite knowledge of
medical principles that would permit him to render an opinion
regarding matters involving medical causation. See Espiritu,
4 Vet. App. at 494; see also Edenfield v. Brown, 8 Vet. App.
384, 388 (1995) (en banc) ("[w]here the determinative issue
involves either medical etiology or a medical diagnosis,
competent medical evidence is ordinarily required to fulfill
the well-grounded claim requirement of section 5107(a)").
His statement is insufficient to establish continuity of
symptomatology. Savage v. Gober, 10 Vet. App. 488, 495
(1997). Thus, the appellant has failed to submit competent
medical evidence of a nexus between the current diagnosis of
generalized anxiety disorder and a disease or injury in
service and thus the claim is not well grounded. See Caluza,
supra.
In light of the appellant's statement that he has suffered
"mental anguish" and "nervousness" due to the presence of
the service connected left leg scar, the Board has also
considered whether there is a well grounded claim for
generalized anxiety disorder secondary to the service
connected left leg scar. A claim for secondary service
connection, like all claims, must be well grounded. 38
U.S.C.A. § 5107(a). A well-grounded claim for secondary
service connection requires evidence of a current disability
as provided by a medical diagnosis, a service-connected
disease or injury, and competent evidence providing a nexus
between the two. Reiber v. Brown, 7 Vet. App. 513, 516
(1995). The appellant is competent to report that the scar
on his leg causes him embarrassment, nervousness or anxiety.
However, in the absence of a competent medical opinion that
links a diagnosis of generalized anxiety disorder to any of
his service connected scars, a secondary claim is not well
grounded.
The reduced evidentiary burden provided for combat veterans
by 38 U.S.C.A. § 1154 relates only to the question of
service incurrence, "that is, what happened then-- not the
questions of either current disability or nexus to service,
as to both of which competent medical evidence is generally
required." See Libertine v. Brown, 9 Vet. App. 521, 524
(1966); Caluza, 7 Vet. App. at 507. The Board does not
dispute that the appellant, a combat veteran, had traumatic
war experiences as he recounted them. We also accept that
he may have experienced "mental problems" during or after
service. (The Board believes that an implied statement that
he had anxiety while in combat and while being wounded is
consistent with the nature and circumstances of such
service). However, lacking a competent medical opinion that
links his generalized anxiety disorder to service, the claim
is not well grounded and the provisions of 38 U.S.C.A.
§ 1154 do not assist the appellant. In the alternative,
there is clear and convincing evidence consisting of the
only medical opinion, that the post-service diagnosis is
related to a non-service event.
General Considerations for Not Well Grounded Claims
When the veteran has not met the burden of submitting well
grounded claims, VA has no further duty to assist him in
developing facts pertinent to his claim, including no duty to
provide him with another medical examination. Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992). Although when a
claim is not well grounded VA does not have a statutory duty
to assist a claimant in developing facts pertinent to the
claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to
advise a claimant of evidence needed to complete his or her
application. This obligation depends on the particular facts
of the case and the extent to which the Secretary has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995).
Here, the VA fulfilled its obligation under section 5103(a)
in the Statement of the Case issued in June 1998. In this
respect, the Board is satisfied that the obligation imposed
by section 5103(a) has been satisfied. See Franzen v. Brown,
9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to
assist claimant in filing his claim pertains to relevant
evidence that may exist or could be obtained). See also Epps
v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches
only where there is an incomplete application that references
other known and existing evidence that pertains to the claim
under consideration) and Wood v. Derwinski, 1 Vet. App. 190
(1991) (VA's duty is just what it states, a duty to assist,
not a duty to prove a claim). Regardless, all avenues of
development were accomplished even though the case was not
well grounded.
Finally, because the Board will not reach the merits of the
appellant's claim, the Board need not address the appellant's
argument as to the application of the benefit-of-the-doubt
rule. See Martinez v. Brown, 6 Vet. App. 462, 464 (1994)
("in the context of a well grounded claim, the benefit[-
]of[-]the[-]doubt doctrine applies to the adjudication of the
merits of a claim"); Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990).
Increased Rating Claims
Service connection for 1) residuals of multiple shell
fragment wounds: scars on the left thigh, left arm, and
inguinal region; 2) residuals of furunculosis infection: scar
left lower leg; and 3) donor site scar on the left thigh was
granted in November 1971. Noncompensable evaluations were
assigned for all three disabilities. The appeal stems from
an April 1998 rating decision that confirmed and continued
the noncompensable evaluations.
The claim is well grounded. 38 U.S.C.A. § 5107(a) (West
1991). This finding is based on the appellant's contentions
that his scars are more disabling than currently evaluated.
Proscelle v. Derwinski, 2 Vet. App. 629 (1992).
The RO has met its duty to assist the appellant in the
development of his claim under 38 U.S.C.A. § 5107 (West
1991). The appellant has indicated that he has not sought
treatment for the scars, therefore there are no treatment
records to be obtained. A VA examination was conducted in
December 1997 and the report is of record. Furthermore,
there is no indication from the appellant or his
representative that there is outstanding evidence which would
be relevant to this claim.
Disability evaluations are determined by the application of a
schedule of rating which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4 (1999). Separate diagnostic codes identify the
various disabilities. Consideration of the whole recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2 (1999);
Peyton v. Derwinski, 1 Vet. App. 282 (1991).
While evaluation of a service-connected disability requires
review of the appellant's medical history, where entitlement
to compensation has already been established and an increase
in the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55 (1994). Therefore, although the Board has reviewed
all the evidence of record, it finds that the most probative
evidence is that which has been developed immediately prior
to and during the pendency of the claim on appeal. When all
the evidence is assembled, the determination must then be
made as to whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
The appellant has contended that although the scar on his leg
was not physically painful, it caused him much mental
anguish. The scar was so ugly that he was extremely self-
conscious about it. He has stopped wearing shorts and will
not go swimming anymore. See VA Form 21-4138, dated March
14, 1995.
A service examination was conducted in March 1968 to replace
service medical records destroyed by enemy fire. The report
documented an 8-inch scar behind the thigh: a multiple shell
wound scar on the abdomen; and a 2-inch multiple shell wound
below the right elbow.
A VA examination was conducted in December 1997. The
appellant reported that his scars caused no functional
limitations. The scars on his left lower extremity caused
him embarrassment secondary to esthetics. On examination his
posture and gait were normal. There was a 4-cm. x 3-cm.
circular scar on the lateral aspect of the left lower leg.
The scar was slightly depressed and hypopigmented compared to
the surrounding area. There was 10-cm. scar just inferior to
the left buttocks. There was a 2-cm. scar on the posterior
aspect of the left upper arm. These were said to be old and
well-resolved scars. The scar in the right inguinal area was
not discernable. The scar in the left posterior upper
extremity showed minimal depression. The scar inferior to
the left buttocks was depressed. There was no significant
tissue loss. The scar in the left lower extremity was
depressed with dermal granulation tissue and was well
resolved. None of the scars were functionally limiting. A
color photograph of the scar inferior to the left buttocks
was included.
The Board has considered all of the Diagnostic Codes relating
to scars to determine if a compensable evaluation is
warranted. The scars are currently evaluated under
Diagnostic Code 7805 for other scars, which directs rating
based on limitation of function of the part affected.
38 C.F.R. § 4.118; Diagnostic Code 7805 (1999).
Superficial scars that are poorly nourished with repeated
ulceration are assigned a 10 percent evaluation. 38 C.F.R.
§ 4.118; Diagnostic Code 7803 (1999). Diagnostic Code 7804
provides for a 10 percent evaluation for superficial scars
that are tender and painful on objective demonstration.
38 C.F.R. § 4.118; Diagnostic Code 7804 (1999).
Since none of scars are located on the head, face or neck,
Diagnostic Code 7800 does not apply. In the absence of a
diagnosis of eczema, Diagnostic Codes 7806 does not apply.
The Board has also considered evaluated the service connected
scars due to multiple shell wounds on the left thigh, left
arm and inguinal region under the schedule for rating muscle
injuries. 38 C.F.R. § 4.73 (1999). A noncompensable
evaluation is assigned when a muscle injury is slight. Under
38 C.F.R. § 4.56(d)(1), a slight muscle disability is
characterized by (i) a simple wound of the muscle without
debridement or infection; (ii) service department record of
superficial wound with brief treatment and return to duty,
healing with good functional results, and no cardinal signs
or symptoms of muscle disability; (iii) a minimal scar with
no evidence of fascial defect, atrophy, or impaired tonus,
and no impairment of function or metallic fragments retained
in muscle tissue. For VA rating purposes, the cardinal signs
and symptoms of muscle disability are loss of power,
weakness, lowered threshold of fatigue, fatigue-pain,
impairment of coordination and uncertainty of movement.
38 C.F.R. § 4.56(c).
I. Residuals of multiple shell wounds: scars on the left
thigh, left arm, and inguinal region.
The preponderance of the evidence is against the claim for a
compensable evaluation. There is no limitation of function
of the underlying part for any of the scars. There is no
evidence of repeated ulceration and no objective evidence
that the scars are tender or painful. The Board also notes
that the appellant has no complaints with regard to these
scars.
The Board has considered the appellant's service-connected
multiple shell wound scars under Diagnostic Codes 5301-5306;
5310-5318, which address muscle injuries of the arm, leg,
pelvic girdle and thigh. See 38 C.F.R. § 4.73 (1999).
However, even if the appellant's service-connected multiple
shell wound scars were evaluated under those Diagnostic
Codes, the appellant's disability would be no more than
noncompensably disabling. The VA examiner made no clinical
findings which would demonstrate any more than a slight
disability. He noted that the scars were old, well-resolved
without significant tissue loss and no functional impairment.
There is no indication of muscle injury. In order to warrant
a moderate (compensable) disability under these Diagnostic
Codes, the appellant's multiple shell wound scars would need
to demonstrate some loss of deep fascia or muscle substance
or impairment of muscle tonus and loss of power or lowered
threshold of fatigue. See 38 C.F.R. § 4.56(c)(d)(2)(i-iii).
As stated above, the VA examiner made findings indicative of
no more than a slight disability under 38 C.F.R. § 4.56 and
would not warrant any more than a noncompensable evaluation
under Diagnostic Codes 5301-5306, 5310-5318.
The preponderance of the evidence is against the claim and
there is no doubt to be resolved. 38 U.S.C.A. § 5107(b),
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
II. Entitlement to a compensable evaluation for residuals of
furunculosis infection: scar left lower leg.
There is no limitation of function of the underlying part for
this scar. There is no evidence of repeated ulceration and
no objective evidence that the scar is tender or painful.
Although the appellant has described the scar as disfiguring,
there is no provision for a compensable evaluation for
disfigurement associated with a scar not located on the head,
face or neck, and not associated with eczema. See 38 C.F.R.
§ 4.118; Diagnostic Codes 7800 and 7806.
The preponderance of the evidence is against a compensable
evaluation and there is no doubt to be resolved. Gilbert, 1
Vet. App. at 49.
To the extent that the appellant claims mental anguish due to
the scar, a neuropsychiatric disorder has not been associated
with the scar. The appellant is not competent as a lay
person to diagnose a neuropsychiatric condition or to
attribute it to a service connected scar. Layno, 6 Vet. App.
at 465.
III. Entitlement to a compensable evaluation for a donor
site scar on the left thigh.
There is no limitation of function of the underlying part for
this scar. There is no evidence of repeated ulceration and
no objective evidence that the scar is tender or painful.
The preponderance of the evidence is against the claim and
there is no doubt to be resolved. Id., 1 Vet. App. at 49.
Multiple Non-Compensable Service Connected Disabilities
Whenever a veteran is suffering from two or more separate
permanent service-connected disabilities of such character as
clearly to interfere with normal employability, even though
none of the disabilities may be of compensable degree under
the 1945 Schedule for Rating Disabilities, the rating agency
is authorized to apply a 10 percent rating, but not in
combination with any other rating. 38 C.F.R. § 3.324 (1999).
Service connection is currently in effect for multiple shell
wounds: scars on the left thigh, left arm, and inguinal
region; residuals of furunculosis infection: scar left lower
leg; a donor site scar on the left thigh; and malaria. All
service connected disabilities are rated noncompensably
disabling.
As noted above in reference to his claims of entitlement to
compensable evaluations, the appellant was found to exhibit
no significant residuals at the December 1997 VA examination
for compensation purposes. Although the appellant is clearly
competent to report that his service-connected disabilities
impact upon his employability, he has not claimed so, and the
evidence does not support a finding that the appellant's
service-connected noncompensable disabilities give rise to
occupational impairment. The appellant has stated that the
scars cause no functional limitation. Similarly, there is no
evidence that malaria results in any occupational impairment.
Thus, the Board finds that the preponderance of the evidence
is against a claim for a compensable rating under the
provisions of 38 C.F.R. § 3.324 (1999).
ORDER
Service connection for post-traumatic stress disorder is
denied. Service connection for generalized anxiety disorder
is denied. A compensable evaluation for residuals of
multiple shell wounds: scars on the left thigh, left arm, and
inguinal region; residuals of furunculosis infection: scar
left lower leg; and donor site scar on the left thigh is
denied. A compensable rating under the provisions of 38
C.F.R. § 3.324 is denied.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals